Meanwhile,
an official said the Public Defender’s Office is nearing a decision on whether
to ask Attorney General Bill Lockyer to seek Delgadillo’s removal through a quo
warranto proceeding.

Attorney
Sarah Kurtin of Munger, Tolles & Olson, who appeared on behalf of
Delgadillo before U.S. District Judge Manuel L. Real, said the judge dismissed
the case in which D’Agostino is represented by Venice
attorney Stephen Yagman. Real last month rejected D’Agostino’s bid for a
temporary restraining order.

Yagman
could not be reached for comment, but said last week he has asked the Ninth
U.S. Circuit Court of Appeals to overturn the earlier ruling. Real said then he
had no jurisdiction to hear the case.

Kurtin
said Real yesterday granted a motion to dismiss the case with prejudice after a
brief hearing. She called the result “consistent with every other court that
has looked at any part of this case and has ruled in favor of the city
attorney.”

D’Agostino
finished third in balloting for city attorney in 2001, but questions about
Delgadillo’s qualifications to hold office were raised in a Jan. 9 column in
the MetNews. A City Charter provision requires that the city attorney have been
“qualified to practice” for the five year period preceding election.

Delgadillo’s
State Bar membership was inactive between Jan. 1, 1995 and July 1, 1999.
Then-City Councilman Michael Feuer, who finished second in the voting and lost
to Delgadillo in a runoff, also had a period of inactive membership.

D’Agostino’s
suit contends that her right to due process was violated when city officials
certified Delgadillo the winner of the election.

Acting
Assistant Public Defender for Operations John Vacca said yesterday that Public
Defender Michael Judge may decide soon whether to ask Lockyer to initiate a quo
warranto proceeding which could remove Delgadillo from office.

“I
suspect he is getting relatively close to making a decision,” Vacca said. He
added that Judge received the “last bits of information” from staff members
researching the issues involved early last week.

Deputy
public defenders have been filing demurrers challenging Delgadillo’s authority
to bring misdemeanor prosecutions since late January. More than 6,000 demurrers
have been overruled, and the Los Angeles Superior Court Appellate Division last
week rejected a writ petition filed by the public defender seeking to force the
court’s judges to reach the merits of the issue as to Delgadillo’s
qualifications.

That
ruling will be challenged before this district’s Court of Appeal, Vacca said.

He
explained that if the office decides to seek Lockyer’s intervention, it would
first ask by letter that the attorney general initiate a quo warranto
proceeding himself. If Lockyer declines to do so, Vacca said, the attorney
general could authorize Judge to bring such an action.

Should
the attorney general decline to intervene without authorizing the public
defender to bring an action, Judge would have to decide whether to request such
authorization, Vacca said.

“We
are taking this on a step by step basis,” the acting assistant public defender
commented.

At
least one private criminal attorney has also raised the issue of Delgadillo’s
qualifications in a misdemeanor prosecution.

Beverly
Hills lawyer Steven T.
Flowers last month filed a motion to dismiss charges of vandalism, loitering,
and cruelty to an animal against Enrique R. Acuna. The motion raises the same
issues cited by the demurrers and is scheduled to be heard Tuesday before Judge
Anne H. Egerton, Flowers said.

In
his moving papers, Flowers also contends that city charter provisions
purporting to authorize the city attorney to prosecute misdemeanors do not meet
the requirements of state law. Government Code Sec. 72193 permits charter
cities to create an “office of city prosecutor, or provide[] that a deputy city
attorney shall act as city prosecutor.”

That
language does not grant cities the power to authorize their city attorneys to
serve as prosecutors, Flowers said. He noted that in Long
Beach and other cities the
offices are distinct.

The
statute reflects a “policy choice” made by the Legislature that city attorneys
should not be involved in prosecuting crimes because they have an “inherent
conflict of interest,” Flowers declared.

The
lawyer said he has been considering raising the issue for some time, but did
not wish to do so in a case in which he was serving as court-appointed counsel
out of concern a judge might believe he was trying to pad his fees. He is not
charging Acuna, a private client, for the time he will spend on the issue,
Flowers said.

Flowers
said he is undeterred by the fact that the practice he is questioning is of
long standing. He asserted that for years the City Attorney’s Office prosecuted
misdemeanors which occurred at the Veteran’s Hospital on the West
Side until he pointed out that it was not
within the city limits.

“Nobody
ever cared,” he said.

Deputy district attorneys still complain to
him about having to prosecute those cases now, Flowers said.